{"id":3737,"date":"2023-12-01T18:22:03","date_gmt":"2023-12-01T18:22:03","guid":{"rendered":"https:\/\/law.temple.edu\/aer\/?p=3737"},"modified":"2023-12-01T18:22:03","modified_gmt":"2023-12-01T18:22:03","slug":"when-a-jury-easily-predicts-the-past","status":"publish","type":"post","link":"https:\/\/law.temple.edu\/aer\/2023\/12\/01\/when-a-jury-easily-predicts-the-past\/","title":{"rendered":"WHEN A JURY EASILY PREDICTS THE PAST"},"content":{"rendered":"
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On January 21st<\/sup> of 1959, a freighter travels down the darkened waters of the Buffalo River, headed with the river\u2019s westerly flow.\u00a0 It\u2019s 10:45 p.m.\u00a0 She moves effortlessly with the current, her boilers completely cool.\u00a0 She moves without propulsion, without a captain, without direction.\u00a0 She is the MacGilvray Shiras, more than 400 feet in length and filled with wintering wheat.\u00a0 On this Wednesday night, she\u2019s been set adrift by a broken ice jam, let loose upriver by a rainy thaw. The Shiras is captained only by the current and towing the fleet of thick and jagged ice that had just pulled her from her moorings.\u00a0 In a few minutes from now, her stern will grab the bow of the Michael K. Tewksbury, pulling it from the dock like a sword from its scabbard.\u00a0 By the will of the Buffalo River, they are both heading for the open waters of Lake Erie.\u00a0 It\u2019s nearly 11:17 p.m.\u00a0 Less than 100 yards downriver, late-arriving bridge tenders scramble upon the Michigan Avenue Bridge like ants.\u00a0 Their eyes darting upriver, down to a set of controls that will raise the bridge, and back upriver again.\u00a0 Two massive ships are emerging from the darkness ahead of them, a dusky white blizzard of ice on the water behind them.\u00a0 The bridge is down.\u00a0 It won\u2019t be raised in time.[1]<\/a><\/p>\n

Oh, how I love teaching this case in my Torts class!\u00a0 It\u2019s a jaw-dropping cascade of errors, from the negligent mooring of the Shiras, to the failed attempts to drop an anchor onto the riverbed, to the bridge tenders who weren\u2019t tending the bridge.\u00a0 These two drifting ships smash the unraised bridge and fray its beams into ribbons.\u00a0 They wedge into a perfect V\u2014from shore, to bridge, to shore\u2014that collects all the flowing ice, piling it from the depths up into the peaks of a jagged dam.\u00a0 The Buffalo River floods for miles, willing itself over the land to continue its trek to Erie.<\/p>\n

Everyone sues everyone.<\/p>\n

Given the monthly bent of this blog, you might imagine how excited I was when I learned that an entire study borrowed from this set of gloriously horrendous facts in order to test one of our brain\u2019s most notorious biases.[2]<\/a><\/p>\n

Let\u2019s change the facts just a bit and think about the case being tried to a jury.\u00a0 Let\u2019s say that only the city of Buffalo had been sued because, months before the winter, the city decided it didn\u2019t need a bridge tender at all.\u00a0 The city looked at the likelihood of rising water producing dams at the bridge and decided that it didn\u2019t need to spend an estimated $100,000 to hire bridge tenders for the winter months.\u00a0 When the jury gets the case, they see very clearly the consequence of failing to hire the bridge tenders.\u00a0 They see all the tattered scraps of bridge submerged in the Buffalo River and the snarl of river traffic that results.\u00a0 The jury is then asked to decide if the failure to hire tenders for the winter was reasonable care given the chances of ice jams.\u00a0 To the jury judging with the bias of hindsight, however, the \u201cchance\u201d of an ice jam at the bridge seems to be 100%.\u00a0 It has already happened.\u00a0 But what if the actual<\/em> chance of a catastrophic, weather-fueled flood by ice jam was only, say, 4%?\u00a0 The only thing known to the city when it decides to pass on bridge tenders is how unlikely a floating battering-ram of river boats and ice seems to be.<\/p>\n

And so we arrive at the study.\u00a0 In this carefully crafted experiment, three groups of participants were shown three very similar slide-show videos.\u00a0 The first group saw a slide-show video depicting in-person, pro-and-con arguments made to the city\u2019s urban planning committee on whether to hire bridge tenders.\u00a0 In this presentation\u2014as well as all the others\u2014experts testified for each side on the incidences of high water on the river. These experts didn\u2019t give percentages of the likelihood of dangerously high water on the river.\u00a0 Instead, they relayed the number of times the river had risen to dangerous levels during a span of decades. The testimony of the experts is anecdotal and not drastically different from one another. The second group saw the same photos of the same people in the first narrated slide show, but the proceeding is now presented as a trial. This time, the city commissioner from the committee meeting was dressed as a judge.\u00a0 The narrations of the people arguing pro-and-con in the first slide show video were tweaked slightly to become closing arguments in a trial. This time, the characters in the slide show argued as lawyers for and against tort liability for an ice flow that had already<\/em> destroyed the bridge. \u00a0The experts gave the same testimony as before. The third group saw this same courtroom-trial version of the slide show, but in this set of slides, the judge appeared at the end and cautioned the jury (the test subjects of the study) on the problems of predicting the likelihood of an event once you know the event has already happened.[3]<\/a>\u00a0 These instructions are called \u201cdebiasing\u201d instructions, meant to counteract the effect of the so-called \u201chindsight bias,\u201d described in the footnote below[4]<\/a><\/p>\n

You should be able to see what the scientists were after here.\u00a0 How many people would say the city should hire bridge tenders while guessing whether an accident might<\/em> happen? How many would say the city should have hired tenders once they already knew<\/em> an accident happened?\u00a0 And, finally, whether a jury\u2019s view of the city\u2019s liability would change with some counseling on the problems of hindsight judgments?\u00a0 Can you see also the stakes involved for plaintiffs\u2019 and civil defense lawyers?\u00a0 In theory, and if justice is blind, what is or is not ordinary care for bridge tending should be the same before and after a bridge is smashed to bits.\u00a0 If the chances of a smashed bridge are determinably low, it\u2019s either ordinary care to forego tending the bridge or it isn\u2019t.\u00a0 What actually happens later is irrelevant.<\/p>\n

So, how did the experiment turn out?\u00a0 Let\u2019s ease our way back into the icy waters of the Buffalo River.\u00a0 First, the two groups viewing the accident as jurors in hindsight gave significantly higher estimates of the chances of a high-water flood event than the foresight group.[5]<\/a> \u00a0While just 24% of the test subjects without hindsight knowledge said the city should hire tenders for the upcoming winter, a whopping 56.9% of those in both post-accident hindsight groups said the city should have hired tenders.[6]<\/a> \u00a0(And with those two results in view, all of our civil defense lawyers reading this are now scooping up their sagging jaws.\u00a0 Perhaps they\u2019re telling themselves they could have predicted that disparity.)\u00a0 The real question, then, is how the third, \u201cdebiased\u201d test group fared on the related question of liability.\u00a0 Would the special jury instructions from the scientists purge the hindsight bias and normalize the liability judgments of the other hindsight jurors?\u00a0 No.\u00a0 The debiasing instruction had no significant effect.\u00a0 57.7% of the un-debiased jury found the city liable.\u00a0 56% of the debiased jurors cautioned about judging with hindsight also ruled against the city.[7]<\/a><\/p>\n

The authors expected hindsight bias.\u00a0 They predicted that the debiasing would work better than it did and they were wrong.\u00a0 These things can happen, right?\u00a0 However, nobody involved\u2014not with three crystal balls, two decks of tarot cards, and a partridge in a pear tree\u2014could predict this last finding of the study.\u00a0 All the study participants were asked to rate the performance of the \u201ccon\u201d arguers; that is, the city manager opposing the hiring of tenders and the city\u2019s defense attorney arguing against liability.\u00a0 I\u2019ll let you read this portion of the study for yourself:\u00a0 \u201c\u2026hindsight participants rated the opponent\/defense attorney\u2019s performance significantly higher than did the foresight participants…and [this result] is in the opposite direction from what the hindsight bias might predict.\u00a0 Hindsight participants felt that the defense attorney did a better job, despite expressing more disagreement with [the defense attorney\u2019s] position.\u201d[8]<\/a>\u00a0 The authors were at a loss on how to explain this result.[9]<\/a><\/p>\n

There is enough data on hindsight effects out there to sink both the Shiras and the Tewksbury to Erie\u2019s depths.\u00a0 As far as hindsight bias relating to trial outcomes, however, the authors cite one article by scholars who proposed bifurcating a trial in such a way that a jury would judge negligence without<\/em><\/strong> knowing about the actual harms that resulted.[10]<\/a>\u00a0 As trial lawyers\u2014as plaintiffs\u2019 lawyers at least\u2014we shudder at the thought of telling the jury a story of the night of January 21st<\/sup>, 1959 in which we can hardly tell the jury about the night of January 21st<\/sup>, 1959.\u00a0 No freighters.\u00a0 No ice.\u00a0 No harried race to raise an untended bridge.\u00a0 This bifurcation idea might raise for you interesting questions of fundamental fairness which you can ponder by the fireside this December.\u00a0 With that, I\u2019ll bring this ship back to the dock.\u00a0 From me and Jules to you and yours, we wish you a happy and healthy holiday season.<\/p>\n<\/div>\n

NOTES<\/strong><\/p>\n

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[1]<\/a> See Petitions of the Kinsman Transit Company<\/em>, 338 F.2d 708 (2nd<\/sup> Cir. 1964) for a fuller and less-stylized recitation of the facts.<\/p>\n

[2]<\/a> Kim. A. Kamin and Jeffrey J. Rachlinski, Ex Post \u2260 Ex Ante: Determining Liability in Hindsight, 10 Law and Human Behavior, no. 1, 1995, at 89-104, https:\/\/psycnet.apa.org\/doi\/10.1007\/BF01499075<\/p>\n

[3]<\/a> See<\/em> Id<\/em>. at 94-97 for a thorough account of the experimental methods employed.<\/p>\n

[4]<\/a> Id<\/em>. at 92.\u00a0 The hindsight bias is a term that labels the human tendency to see events as more predictable after the event has already happened.<\/p>\n

[5]<\/a> Id. <\/em>at 98.<\/p>\n

[6]<\/a> Id<\/em>.<\/p>\n

[7]<\/a> Id<\/em>.<\/p>\n

[8]<\/a> Id. <\/em>at 100.<\/p>\n

[9]<\/a> Id.<\/em><\/p>\n

[10]<\/a> Id. <\/em>at 92, citing D.B. Wexler and R.F. Schopp, How and when to correct for juror hindsight bias in mental health malpractice litigation: Some preliminary observations, 7 Behavioral Sciences and the Law, 1989, at 485-504.<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n

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